IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 70

Big Pines, LLC, Plaintiff, Appellee,

and Cross-Appellant

v.

Biron D. Baker, M.D., and

Biron D. Baker Family Medicine PC, Defendants, Appellants,

and Cross-Appellees

No. 20200237

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable William A. Herauf, Judge.

AFFIRMED AND REMANDED.

Opinion of the Court by Crothers, Justice.

Grant T. Bakke (argued) and Shawn A. Grinolds (on brief), Bismarck, ND, for

plaintiff, appellee, and cross-appellant.

Mark R. Western (argued), Fargo, ND, and James W. Martens (appeared), 

Bismarck, ND, for defendants, appellants, and cross-appellees.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

APRIL 20, 2021 

STATE OF NORTH DAKOTA
1

Big Pines v. Baker

No. 20200237

Crothers, Justice.

Biron D. Baker Family Medicine, PC and Biron D. Baker, M.D., appeal 

from a district court judgment awarding Big Pines, LLC attorney’s fees and 

costs. We affirm and remand for consideration of attorney’s fees on appeal. 

I

In 2011, Baker Medicine signed an agreement to lease commercial 

property from Phoenix M.D., L.L.C. Baker executed the lease personally and 

for Baker Medicine as its president. The lease contained a personal guaranty, 

which in pertinent part stated: 

“[T]he Guarantor absolutely and unconditionally guarantees 

prompt and satisfactory performance of the lease agreement, in 

accordance with all of its terms and conditions . . . If the Tenant 

should default in performance of its obligations under the lease 

agreement according to it’s [sic] terms and conditions, the 

Guarantor shall be liable to the Landlord for all expenses, costs, 

and damages that the Landlord is entitled to recover from the 

Tenant, including, to the extent not prohibited by law, all costs and 

fees incurred in attempting to realize upon this guaranty.”

Baker Medicine allegedly vacated the premises several months prior to the end 

of the lease and in a damaged condition. Phoenix subsequently sold the 

building to Big Pines. Phoenix assigned its interest in the lease to Big Pines as 

part of the sale. 

Big Pines sued alleging breach of the lease by Baker Medicine and breach 

of the personal guaranty by Baker. On May 13-15, 2019, a jury trial was held. 

On May 15, 2019, the jury found Baker Medicine and Baker breached the lease 

and awarded Big Pines $18,750 in damages. Big Pines later moved for an

award of attorney’s fees under the personal guaranty. On July 1, 2019, the 

district court denied Big Pines’ request, concluding the personal guaranty was 

not assigned to Big Pines. 
2

Big Pines appealed the district court’s interpretation of the lease and 

personal guaranty, and its denial of attorney’s fees. Big Pines, LLC v. Baker, 

2020 ND 64, 940 N.W.2d 616. This Court reversed and remanded the case for 

an award of attorney’s fees in favor of Big Pines. Id. at ¶¶ 1, 20. 

On April 14, 2020, Big Pines moved for attorney’s fees totaling 

$108,567.50, as well as any future fees and costs until the case is “fully and 

finally dismissed.” On July 27, 2020, the court held an evidentiary hearing on 

Big Pines’ motion. On August 5, 2020, the court granted Big Pines’ motion and 

ordered that Baker and Baker Medicine pay Big Pines $103,138. Judgment 

was entered on August 19, 2020, after which Baker and Baker Medicine made 

a timely appeal. 

II

Baker and Baker Medicine argue the district court erred in calculating

the recoverable amount of attorney’s fees incurred by Big Pines. Baker and 

Baker Medicine claim awarding any attorney’s fees to Big Pines was 

inappropriate because the litigation to enforce the lease was not an attempt to 

“realize upon the guaranty” as required by the agreement. To address this 

issue, we first must understand the nature of Baker’s personal guaranty.

The liability of a guarantor will not extend beyond the plain and certain 

import of the contract of guaranty. Gen. Elec. Credit Corp. of Tenn. v. Larson, 

387 N.W.2d 734, 736 (N.D. 1986). The language of a contract is to govern if the 

language is clear and explicit and does not involve an absurdity. N.D.C.C. § 9-

07-02. “The whole of the contract is to be taken together so as to give effect to 

every part if reasonably practicable. Each clause is to help interpret the 

others.” N.D.C.C. § 9-07-06. “Technical words are to be interpreted as usually 

understood by persons in the profession or business to which they relate, unless 

clearly used in a different sense.” N.D.C.C. § 9-07-10. To determine the 

meaning of the phrase “to realize upon” the specifics of this guaranty, it is

necessary to evaluate the guaranty as a whole. See N.D.C.C. § 9-07-06. 
3

A 

“The law recognizes two distinct types of guaranty: a guaranty of 

collection (or conditional guaranty) and a guaranty of payment (or 

unconditional guaranty).” Chahadeh v. Jacinto Medical Grp., P.A., 519 S.W.3d 

242, 246 (Tex. App. 2017) (citing Cox v. Lerman, 949 S.W.2d 527, 530 (Tex. 

App. 1997)). This Court has recognized the distinction between a guaranty of

payment and a guaranty of collection, stating: 

“The fundamental distinction between a guaranty of payment and 

one of collection is that, in the first case, the guarantor undertakes 

unconditionally that the debtor will pay, and the creditor may, 

upon default, proceed directly against the guarantor without 

taking any step to collect of the principal debtor, . . . while, in the 

second case, the undertaking is that, if the demand cannot be 

collected by legal proceedings, the guarantor will pay, and 

consequently legal proceedings against the principal debtor and a 

failure to collect of him by those means are conditions precedent to 

the liability of the guarantor, . . .” 

Bank of Kirkwood Plaza v. Mueller, 294 N.W.2d 640, 644 (N.D. 1980); State

Bank of Burleigh Cty. v. Porter, 167 N.W.2d 527, 532-33 (N.D. 1969). 

A guaranty of the payment of debt is different than a guaranty of 

collection—the former being absolute and the latter being conditional. See

Brown v. Hederman Bros., LLC, 207 So.3d 698, 702-03 (Miss. Ct. App. 2016)

(explaining the contrasts between a guaranty of collection and one of payment, 

the former allowing the creditor to “seek performance from the guarantor only 

after the occurrence of some condition,” while the latter “is one that requires 

no condition precedent to its enforcement against the guarantor other than 

mere default by the principal debtor. . .”); CoastalStates Bank v. Hanover 

Homes of South Carolina, LLC, 759 S.E.2d 152, 157 (S.C. Ct. App. 2014) (“A 

guaranty of payment is an absolute or unconditional promise to pay a 

particular debt if it is not paid by the debtor at maturity.”); R.B. Cronland 

Bldg. Supplies, Inc. v. Sneed, 589 S.E.2d 891, 893 (N.C. Ct. App. 2004) (“A 

guaranty of payment is an absolute promise by the guarantor to pay the debt 

at maturity if it is not paid by the principal debtor.”); AMA Mgmt. Corp. v. 
4

Strasburger, 420 S.E.2d 868, 872 (S.C. Ct. App. 1992) (A guaranty of payment 

“is a personal obligation running directly from the guarantor to the creditor 

which is immediately enforceable against the guarantor upon default of the 

debtor.”). A guaranty of payment binds the guarantor to pay the debt at 

maturity. Kee v. Lofton, 737 P.2d 55, 59 (Kan. Ct. App. 1987). A guaranty to 

secure “due and punctual performance and payment” is a guaranty of payment.

Tenet Healthsystem TGH, Inc. v. Silver, 52 P.3d 786, 789-90 (Ariz. Ct. App. 

2002). On the debtor’s default, the underlying obligation becomes fixed and the 

creditor need not make a demand on the principal debtor before pursuing the 

guarantor. See Sneed, 589 S.E.2d at 893 (In a guaranty of payment, “[t]he 

obligation of the guarantor is separate and independent from the obligation of 

the principal debtor, and the creditor’s cause of action against the guarantor 

ripens immediately upon failure of the principal debtor to pay the debt at 

maturity.”); Marine Midland Bank, N.A. v. Elshazly, 753 F.Supp. 20, 23 (D. 

Conn. 1991) (“Under a guaranty of payment contract, the [creditor] need not 

prove that it proceeded against [debtor], nor unsuccessfully sought payment 

from [debtor] prior to this suit against [guarantor].”).

In contrast to a guaranty of payment, a guaranty of collection is a 

promise that the guarantor will pay the creditor if the creditor cannot collect the 

claim from the principal debtor, generally following suit against that debtor.

See Forsyth Cty. Hosp. Auth. Inc. v. Sales, 346 S.E.2d 212, 214 (N.C. Ct. App. 

1986) (“A guaranty of collection is distinguished from a guaranty of payment 

in that the former is a promise by the guarantor to pay the debt only on the 

condition that the creditor first diligently prosecute the principal debtor 

without success.”). Such a guaranty conditions liability on the creditor 

exhausting remedies against the debtor. See Park Bank v. Westburg, 832 

N.W.2d 539, 551 (Wis. 2013) (“Unlike a guaranty of collection, a guaranty of 

payment does not condition liability upon the creditor exhausting remedies 

against the debtor.”).

This Court has concluded a guaranty was absolute based on the following 

language: “This Guaranty is an absolute and completed one and shall be a 

continuing one.” Wallwork Lease and Rental Co., Inc. v. Decker, 336 N.W.2d 

356, 358 (N.D. 1983). In Wallwork, we held “[t]he underscored language of the 
5

guaranty agreement affirms that this is an absolute guaranty, and, 

accordingly, liability becomes fixed upon default of the debtor.” Id. To create a 

conditional guaranty, the drafter must include language creating a condition 

precedent to the guarantee’s ability to proceed against the guarantor. See

Citizens’ State Bank of Rugby v. Lockwood, 156 N.W. 47, 52 (N.D. 1915) (“We 

look in vain for any expression in the contract itself . . . to show that the parties 

to this agreement intended . . . to constitute a guaranty of collection, or any 

form of indemnity against loss importing the performance by plaintiffs of any 

condition precedent to the liability of the defendants.”); Hawaii Leasing v. 

Klein, 698 P.2d 309, 313 (Haw. Ct. App. 1998) (“Here, the contract of guaranty 

was conditional since Defendants’ liability was contingent upon Plaintiff’s 

selling the [leased equipment] should [the principal] default under the 

equipment lease . . .”); Western Industries, Inc. v. Chicago Mining Corp., 926 

P.2d 737, 740 (Mont. 1996) (“The express terms of the guaranties require [the 

guarantee] to first proceed against [the principal], and it is undisputed that 

this language establishes a condition precedent to the Guarantors’ liability.”).

Here, the guaranty contained no limiting language, nor did it impose a

condition precedent to Big Pines’ ability to proceed directly against Baker as 

guarantor. Instead, the guaranty provided that should Baker Medicine default 

in its performance of lease obligations, Baker would be individually liable to 

Big Pines for all expenses, costs, and damages Big Pines would be entitled to 

collect from Baker Medicine. Consistent with the guaranty’s language, Big 

Pines sued both parties and obtained judgment “against Defendants Biron D. 

Baker, M.D. and Biron D. Baker Family Medicine PC in the amount of $18,750 

together with such post-Judgment interest as shall accrue under this 

Judgment pursuant to North Dakota law.” 

We conclude the guaranty was absolute, and a guaranty of payment 

rather than one of collection. However, our conclusion begins rather than 

concludes our analysis because the guaranty must be read as a whole, and we 

must consider the effect of the remaining language on the guarantor’s 

obligation.
6

B 

In addition to a guaranty of payment, the contract here permits recovery 

of “all costs and fees incurred in attempting to realize upon this guaranty.” 

Baker and Baker Medicine argue “to realize upon” means to convert noncash 

assets into cash. Baker and Baker Medicine claim Big Pines did not incur any 

recoverable fees because Big Pines could not attempt to realize on the guaranty 

until Baker Medicine’s liability was determined and judgment was entered. 

Baker further argues Big Pines is not entitled to any attorney’s fees because 

Baker paid the judgment before Big Pines made any post-judgment collection 

efforts.

This Court has not defined “to realize upon,” nor have we addressed the 

phrase under similar circumstances. Black’s Law Dictionary defines 

realization as “[c]onversion of noncash assets into cash assets.” Black’s Law 

Dictionary (11th ed. 2019). Other courts have defined “realize” as reducing 

something to actual cash in hand. See McFarland v. Northwest Realty Co., 362 

N.W.2d 98, 100 (S.D. 1985); Chelan Orchards v. Olive, 235 P. 805, 806 (Wash. 

1925); Weldon v. Newsom, 186 P. 516, 517 (Colo. 1920). Further, while we have 

no specific definition, this Court has used the phrase in the context of a party

converting assets into cash. See Murphy v. Hanna, 164 N.W. 32, 33 (N.D. 1917) 

(“[A] failure to so realize upon and convert such assets as were available into 

cash . . .”). The phrase “to realize upon” is used in the guaranty in a manner 

consistent with the definitions set out above.

In this case, the guaranty was one of payment and Baker was 

immediately liable upon Baker Medicine’s default. Big Pines was not required 

to proceed against Baker Medicine prior to proceeding against Baker 

individually. In fact, Big Pines proceeded directly against both Baker Medicine 

and Baker rather than only against Baker Medicine. Therefore, the costs

incurred during litigation to enforce the lease and the personal guaranty were 

costs incurred in attempting to realize upon the guaranty. The district court 

did not err in awarding attorney’s fees for the litigation against Baker to

convert a legal claim into a judgment, and ultimately efforts to convert that noncash judgment into cash.
7

III

Baker and Baker Medicine argue that, if attorney’s fees are recoverable 

under the guaranty, the district court abused its discretion by failing to engage 

in a “lodestar” analysis to determine the reasonableness of the attorney’s fees 

requested by Big Pines. 

When determining the reasonableness of an award of attorney’s fees, 

“the ‘lodestar’ amount—the number of reasonably expended hours times a 

reasonable hourly rate—is presumed to be the reasonable fee.” Thompson v. 

Schmitz, 2011 ND 70, ¶ 18, 795 N.W.2d 913. “The calculation of the lodestar 

figure does not end the analysis, and the presumptively reasonable amount 

may be varied depending upon other considerations.” Palmer v. Gentek Bldg. 

Prod., Inc., 2019 ND 306, ¶ 24, 936 N.W.2d 552. Other important factors to 

consider when determining reasonable attorney’s fees may be found in 

N.D.R.Prof. Cond. 1.5(a); Tillich v. Bruce, 2017 ND 21, ¶ 11, 889 N.W.2d 899. 

Rule 1.5(a), N.D.R.Prof. Cond., provides the following guidelines: 

“(1) the time and labor required, the novelty and difficulty of the 

questions involved, and the skill requisite to perform the legal 

service properly; 

(2) the likelihood, if apparent to the client, that the acceptance of 

the particular employment will preclude other employment by the 

lawyer; 

(3) the fee customarily charged in the locality for similar legal 

services; 

(4) the amount involved and the results obtained; 

(5) the time limitations imposed by the client or by the 

circumstances; 

(6) the nature and length of the professional relationship with the 

client; 

(7) the experience, reputation, and ability of the lawyer or lawyers 

performing the services; and 
8

(8) whether the fee is fixed or contingent.” 

Although this Court has adopted guidelines to determine a reasonable 

award of attorney’s fees, we also have recognized the decision rests in the 

sound discretion of the district court. See First Trust Co. of N.D. v. Conway, 

345 N.W.2d 838, 844 (N.D. 1984). Further, a district court is not required to 

describe its calculations in detail when awarding attorney’s fees so long as this 

Court can discern a basis for the award. See Greenwood, Greenwood & 

Greenwood, P.C. v. Klem, 450 N.W.2d 745, 748 (N.D. 1990). “An itemized bill 

may be used to establish attorney’s fees.” Riemers v. State, 2008 ND 101, ¶ 15, 

750 N.W.2d 407. 

Here, the district court evaluated an itemized and detailed bill provided 

by Big Pines as well as Shawn Grinolds’ affidavit and testimony. Grinolds 

testified to all of the following at the July 27, 2020 evidentiary hearing: (1) the 

work he completed for Big Pines was necessary and not duplicative; (2) the 

hourly rates he charged Big Pines were reasonable and less than he charged 

other clients; (3) Big Pines had only one attorney present throughout litigation 

while Baker and Baker Medicine had two; (4) the amount of attorney work was 

more than usual and heightened due to motions and conduct on the part of 

Baker and Baker Medicine; and (5) the majority of trial time was spent proving 

damages on the cost of repairs claim. The district court noted the disproportion 

between the amount awarded and the fees requested. The court noted the time 

spent on proving the claim for damages was approximately 95% of the total 

fees requested. The court noted the fees were reasonable and customary for the 

work provided, and that Baker did not provide evidence to the contrary but

relied only on argument. The court also found many of the plaintiff’s increased 

hours on the case were due to conduct by the defense.

The district court was not required to make findings on every factor to 

determine reasonableness so long as this Court is able to discern the basis for 

the award. We have been provided with a discernible basis for the district 

court’s award of attorney’s fees, and we conclude the award is not arbitrary or 

unreasonable. The court did not abuse its discretion. 
9

IV

Big Pines argues in its cross-appeal that it is entitled to attorney’s fees 

on appeal. “Although this Court and the trial court have concurrent 

jurisdiction to award attorney’s fees on appeal, we have expressed our 

preference that the initial determination be made by the trial court.” Routledge 

v. Routledge, 377 N.W.2d 542, 549 (N.D. 1985). Accordingly, we remand for the 

district court to determine what attorney’s fees Big Pines is entitled to on 

appeal. 

V

We have considered the parties’ remaining arguments and conclude they 

are either unnecessary to our decision or without merit. The district court 

judgment is affirmed, and we remand with instructions to determine what 

attorney’s fees Big Pines is entitled to on appeal.

Jon J. Jensen, C.J. 

Gerald W. VandeWalle 

Daniel J. Crothers 

Lisa Fair McEvers 

Jerod E. Tufte